MURATORE v. STATE ex rel. DEPT. OF PUBLIC SAFETY
320 P.3d 1024
| Okla. | 2014Background
- On April 21–22, 2012 Mark Muratore was arrested for DUI and voluntarily submitted to breath testing on an Intoxilyzer 8000; two breath samples measured .11 g/210L.
- DPS revoked Muratore’s license administratively; an administrative hearing sustained the revocation and Muratore appealed to district court.
- At the de novo trial the court admitted the officer’s affidavit but excluded two offered documents: the manufacturer’s Certificate of Calibration (CMI, Mar. 26, 2009) and the supplier’s Certificate of Analysis for the reference gas (ILMO, Feb. 10, 2012) as hearsay.
- The trial court also found the Board of Tests had no implemented rules governing maintenance procedures for the Intoxilyzer 8000 and noted inconsistencies in dates on the officer’s affidavit and the machine printouts.
- The trial court vacated the revocation; the Court of Civil Appeals reversed. The Oklahoma Supreme Court granted certiorari and affirmed the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of manufacturer and supplier certificates (hearsay) | Certificates are hearsay and not admissible; lack foundation | Certificates fall under public records or business records exceptions | Certificates inadmissible: not public records (created by third parties) and defendant failed to lay business-records foundation |
| Applicability of public-records exception (12 O.S. §2803(8)) | Not applicable because third parties prepared the certificates | Certificates are part of Board of Tests’ regularly kept records and thus admissible | Not a public record; exception inapplicable because documents were created by private entities, not public officials |
| Relevance/timeliness of calibration and gas analysis | Old calibration (2009) and earlier gas analysis (Feb 2012) do not prove device condition at arrest | Certificates are probative that device and gas met standards | Documents not sufficiently probative of device condition at time of arrest; relevance insufficient |
| Sufficiency of DPS proof re: proper test and maintenance | DPS says bench checks and existing practices ensure device reliability | Muratore points to lack of Board-adopted maintenance rules and affidavit/machine date inconsistencies | DPS failed to prove test was on a properly maintained device; revocation vacated due to insufficient proof |
Key Cases Cited
- Westerman v. State, 525 P.2d 1359 (Okla. Crim. App. 1974) (Board rules on operation/maintenance required; noncompliance invalidates tests)
- Taylor v. State, 248 P.3d 362 (Okla. Crim. App. 2011) (Confrontation Clause requires opportunity for cross-examination for testimonial hearsay)
- Clark v. State ex rel. Dep’t of Pub. Safety, 153 P.3d 77 (Okla. Civ. App. 2007) (Intoxilyzer 5000 maintenance log held admissible under public-records exception when created by state officer)
- Derrick v. State ex rel. Dep’t of Pub. Safety, 164 P.3d 250 (Okla. Civ. App. 2007) (DPS bears burden to prove proper test on properly maintained device in revocation proceedings)
- Smith v. State ex rel. Dep’t of Pub. Safety, 680 P.2d 365 (Okla. 1984) (standard of review and de novo district-court trial for license revocation appeals)
- Kerr v. Clary, 37 P.3d 841 (Okla. 2001) (trial court’s admission/refusal of hearsay evidence reviewed for abuse of discretion)
- Cornett v. Carr, 302 P.3d 769 (Okla. 2013) (finality principles; prospective application of new rule)